Gez18 v Minister for Immigration
[2019] FCCA 2631
•17 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEZ18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2631 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 36, 473CA, 473CB, 473CC, 473B, 476 |
| Cases cited: AIR15 v Minister for Immigration [2016] FCA 1425 ANA18 v Minister for Home Affairs [2018] FCA 1854 DGZ16 v Minister for Immigration (2018) 258 FCR 551 Minister for Immigration v Eden (2016) 240 FCR 158 Minister for Immigration v Khadgi (2010) 190 FCR 248 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZYXS v Minister for Immigration [2013] FCA 614 |
| Applicant: | GEZ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1866 of 2019 |
| Judgment of: | Judge Driver |
| Hearing dates: | 10, 17 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2019 |
REPRESENTATION
The Applicant appeared in person via videolink
| Solicitors for the Respondents: | Mr C Chang of Clayton Utz |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1866 of 2019
| GEZ18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZESHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 26 June 2019.[1] The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 3 September 2019.
[1] Court Book (CB) 227-250, Authority Decision Record (DR).
The Authority affirmed a decision of the delegate dated 23 November 2017.[2] The delegate refused to grant the applicant a Safe Haven Enterprise (XE-790) visa (SHEV), for which he had applied on 23 December 2016.[3]
[2] CB 171-191.
[3] CB 26-84.
The Authority’s decision was made following the remittal of the matter by this Court on 23 April 2019, in which Judge O'Sullivan quashed an earlier decision of the Authority dated 20 February 2018,[4] on the basis that the it had failed to consider the applicant's claims that he would be perceived to be homosexual on return to Iran (remittal proceeding).[5]
[4] CB 197-219.
[5] MLG3607/2018, CB 220.
The applicant is a citizen of Iran who, relevantly:
a)arrived in Australia at Christmas Island on 7 June 2013[6] as an Unauthorised Maritime Arrival; and
b)met the requirements of the definition of a “fast track applicant”: s.5(1)(a)(i)-(iii) and therefore his application was subject to, and governed by, Part 7AA of the Migration Act 1958 (Cth) (Migration Act).
[6] CB 64.
The Authority’s decision was made pursuant to s.473CC of the Migration Act. This Court has jurisdiction to hear the application under s.476(1) of the Migration Act because the decision is a “migration decision” within the meaning of s.5(1) of the Migration Act.
On 24 July 2019, the applicant filed an application for judicial review with this Court, in which he relies on seven grounds.
Protection claims
The applicant who claimed to fear harm on the basis of past incidents involving the Basij and police, his work as a hairdresser between 2008-2012, attendance at a pre-New Year festival in 2012 (Chaharshanbehsoori) and a private party with his friends in 2013. In particular, the applicant claimed that:
a)he was targeted, monitored and assaulted by the Basij, police, and Sepah because of his appearance, westernised lifestyle and work as a hairdresser. His hairdressing salon was frequently closed down by the Sepah and he was accused of being involved in “satanism” and being anti-Islam;[7]
b)while celebrating at the Chaharshanbehsoori festival, he was accused of being a "fire worshipper", arrested by police and held in custody for 25 days;[8] and
c)after partying at a friend's house and having sex with several of his friends, he was charged with homosexuality, apostasy and frequenting a brothel and was arrested and held in custody for two months in connection with those charges.[9]
[7] See applicant’s written statement provided in support of the SHEV application at CB 84 [8], as well as CB 229 [8].
[8] Ibid, CB 84 [14].
[9] Ibid, CB 84 [17]-[18].
The applicant claimed to fear harm because he had converted to Christianity after arriving in Australia and that he would be punished (in light of his previous charges of apostasy) for being a Christian apostate upon return to Iran.[10] He further claimed to have been discriminated against on account of his Ahwazi Arab ethnicity, and in particular, that he would be arrested and harmed "whenever he went somewhere to work".[11]
Authority’s decision
[10] Ibid, CB 84 [5] and [23].
[11] CB 238-239 [55].
New information
New information was provided to the Authority on behalf of the applicant's representative on 12 April 2019, namely a certificate of baptism and a supporting letter from Hillsong Citycare, each dated 4 December 2016.[12] Although the Authority observed that this information may have been provided earlier, it determined that there were exceptional circumstances to justify its consideration because such information may not have been readily obtainable by the applicant as he was in immigration detention.[13]
[12] See CB 221-222 and CB 228 [5].
[13] DR [6].
The Authority considered that there were exceptional circumstances to take into account a more recent DFAT report on Iran published in June 2018, because it had the most up-to-date assessment of the situation in Iran and because it had been prepared specifically for the purpose of determining refugee protection status.[14]
[14] DR [7].
Material before the Authority
The Authority identified at [10] that the applicant's claims for protection were made:
a)at an entry interview on 30 June 2013;[15]
b)in a written statement submitted with his SHEV application on 23 December 2016;[16]
c)at an interview with the delegate on 4 May 2017; and
d)in post-delegate interview submissions[17] attaching identity documents[18] and two media articles[19] on 18 May 2017.
[15] CB 8-10; incorrectly recorded as 29 July 2013 at DR [10].
[16] CB 84-86.
[17] CB 125-132.
[18] CB 133-135.
[19] CB 136-141.
The Authority noted at [11] that on 27 September 2017, the applicant's representative provided a response to a request from the delegate on 14 June 2017, regarding information about criminal proceedings in Australia.[20] The Authority did not consider this information relevant to the applicant's claims for protection, and therefore it did not take this information into account.[21]
[20] CB 150-151.
[21] DR [12].
Findings
Basij and the police
The applicant's claims in relation to the Basij and police consisted of four separate incidents.[22] The Authority noted at [14]-[15] that the evidence given at the delegate’s interview in relation to two incidents concerning the Basij shaving the applicant's head and cutting his beard sounded "rehearsed"; that two of the claimed incidents relating to a police arrest and destruction of his sound system by the Basij were not mentioned at the delegate’s interview; and that only one claimed incident relating to the Basij shaving his head was mentioned at the entry interview.
[22] See applicant’s written statement provided in support of the SHEV application at CB 84 [9]-[10] and CB 85 [12]-[13]; as well as CB 229 [8].
Having made these observations concerning the applicant's evidence, the Authority identified the limitations of relying on omissions in the entry interview,[23] and proceeded to consider country information which indicated that Iranian youths were subject to "low" levels of harassment, that those who had "western" hairstyles were not made to "conform" or to "undertake not to wear their hair" in a particular way in the future.[24] In this context, it determined that while the applicant had experienced adverse interactions with the authorities because of his "westernised lifestyle and appearance" and perceived "un-Islamic conduct" (in particular, for being in public with his girlfriend and for keeping long hair on one occasion), he was not mistreated or made to sign an undertaking not to grow his hair long in the future.[25]
[23] DR [16].
[24] DR [17].
[25] DR [18].
The Authority considered that the applicant's claims of the Basij shaving his head and cutting his beard; the police arresting, beating and detaining him for being with a group of youths; and the Basij destroying his sound system were "exaggerated, embellished and/or fabricated".[26]
Work as a hairdresser
[26] DR [18].
Although the Authority accepted that the applicant did in fact own a hair salon, the Authority did not accept that his hair salon was shut down by the Sepah up to eight times, he was kept under surveillance, and he paid bribes to re-open the salon because he was accused of being involved in "Satanism" and being "against Islam" for the hairstyles he was providing to customers.[27]
[27] DR [24].
As country information suggested that salons which "cut hair in a devil worshipping style" were dealt with "harshly", and that the salon could lose its licence or be shut down if the salon failed to adhere to a warning,[28] it was implausible that the applicant could have been "permitted to keep re-opening" the salon even if he had paid bribes to the Sepah.[29]
Attendance at the Chaharshanbehsoori festival
[28] DR [20].
[29] DR [23].
The Authority did not accept that the applicant was arrested, accused of being a "fire-worshipper" and detained for 25 days for participating in the Chaharshanbehsoori celebrations because:
a)the evidence given in the delegate interview and written evidence was "brief" and "scant";[30]
b)the omission of this claim at the entry interview was "significant", given that the applicant only mentioned that he was detained for three to four days when asked if he had ever been detained or arrested;[31] and
c)there was no mention of the participants who were arrested at the Chaharshanbehsoori festival, being referred to judicial authorities (which, as indicated by a media article[32] provided by the applicant in his post-delegate interview submission, did in fact occur).[33]
Attendance at a private party with friends in 2013
[30] DR [25] and [28].
[31] DR [25]; see Entry Interview Response 38, at CB 9.
[32] "Up to 150 men and women detained at party", The Guardian dated 27 July 2016; see CB 137.
[33] DR [27]-[28].
The Authority did not accept that the applicant was caught by the morality police after partying at a friend's house, and was charged with homosexuality, apostasy and frequenting or running a brothel. It also rejected that the applicant was detained for two months as a consequence, and that he was released after his father paid a bribe. It came to that conclusion because:
a)the applicant raised this claim for the first time in his written statement, despite the incident allegedly occurring a few months prior to leaving Iran.[34] The evidence provided in the entry interview was that he was detained for a period of three to four days (one year before the entry interview),[35] while in his written statement he claimed that he was detained for a period of two months (a few months prior to the entry interview).[36] The Authority considered this omission "very significant",[37] and that the explanation given as to why it was not mentioned at the entry interview was "entirely unconvincing and self-serving", particularly given that he was prepared to disclose that he was considered a "terrorist person" at that interview;[38] and
b)the evidence given in the applicant's written statement and at the delegate interview was vague, general, unpersuasive and inconsistent in the following respects:
i)in the applicant's written statement, he indicated that he and his friends were "all charged with homosexuality, apostasy and frequenting a brothel",[39] while at the delegate interview he confirmed he was charged for "running a prostitution house" and did not mention the charges of homosexuality and apostasy. The Authority placed "particular weight" on this, as he claimed to have fled Iran "as soon as he could" because the punishment for homosexuality was the death penalty;[40]
ii)in the applicant's written statement, he claimed that he was in custody for two months before his father bribed the police to drop the charges and release him,[41] while at the delegate’s interview he claimed that his father paid the bribe while he was "awaiting sentence", and was then released on bail. When asked by the delegate how he was able to obtain a passport when he was recently released on bail, he changed his evidence and claimed that "he was not released on bail". The Authority considered these inconsistencies to be "substantial differences" in the evidence as to whether the charges were dropped or remained outstanding.[42]
[34] DR [29].
[35] See Entry Interview Response 38, at CB 9.
[36] CB 85 [18].
[37] DR [34].
[38] DR [36].
[39] Ibid.
[40] DR [32].
[41] Ibid.
[42] DR [33].
Given that country information indicated that the applicant needed to have an exit permit if he had any outstanding criminal matters, and that he had left Iran using his passport,[43] the Authority did not accept that the applicant was of "any interest to the authorities in relation to outstanding criminal charges" or that his "file may be re-opened" upon return to Iran.[44]
Conversion to Christianity
[43] Ibid.
[44] DR [35] and [37].
The Authority did not accept that the applicant was a "genuine convert" to Christianity because:
a)the applicant had not taken "any further steps to explore Christianity" outside of attending church six to seven times in a three year period.[45] This was not indicative of "any kind of serious interest in or commitment to learning about Christianity";[46]
b)the first time the applicant "regularly engaged and sought to learn about Christianity in any kind of serious way", was when he was transferred into immigration detention[47] and was offered assistance to lodge his SHEV application by the Primary Application and Information Service.[48] The Authority observed that it was "difficult" not to draw the conclusion that the two events were "connected", particularly as it considered the applicant's explanation[49] of why he became interested in Christianity at that time "clichéd and superficial";[50]
c)the evidence given at the delegate interview as to the lack of Christian teachings available at the detention centre was unpersuasive as there was evidence[51] which suggested a regular presence of the Hillsong Church;[52] and
d)there was no "credible evidence" about how Christianity "resonated with the [applicant] personally", he appeared unable to remember the name of the holy book (the bible), and indicated he was reading the Old Testament which "did not sit well" with his claim of having found and prayed to Jesus and to have been baptised into a new life. His responses to the questions posed by the Delegate about Christianity were "trite generalities", despite having been informed that his responses would be needed to "assess whether his conversion was motivated purely on the basis of obtaining asylum".[53]
[45] Delegate's decision CB 178, dot point 7.
[46] DR [49].
[47] Around 15 September 2013 (see DR at CB187).
[48] On 4 October 2016 (see CB 22-25).
[49] CB 178, dot point 10.
[50] DR [50].
[51] See CB 221.
[52] DR [51].
[53] DR [52].
Although the Authority accepted that "people not born into a religion will not have much knowledge" about that religion, that there may be a range of reasons (not solely related to practising that faith) as to why a person may convert, it was not satisfied that the applicant's conversion to Christianity was genuine, and that he would continue to practice Christianity upon return to Iran. The Authority concluded that the applicant was baptised for the purpose of "strengthening his application" and that he is a "non-believer".[54]
Discrimination on account of his Ahwazi Arab ethnicity
[54] DR [53].
The Authority accepted that it was plausible that the applicant "may have encountered some discrimination" on account of his ethnicity, but it did not accept that he was arrested and harmed "whenever he went somewhere to work". In so finding, the Authority noted that the claim was raised only at the interview before the delegate, that it was unsupported by evidence and in particular, the applicant's history of being "steadily employed" after leaving school in 2005.[55]
[55] DR [56]; see also CB 82.
Overall assessment
On the basis of country information and materials before it, the Authority was not satisfied that there was a real chance that the applicant will be subject to serious harm on account of:
a)being agnostic or for failing to involve himself in religious observance;[56]
b)his hair potentially being perceived as "homosexual or devil worshipping";[57]
c)his participation and attendance at private parties and being perceived as "continuing to engage in morality crimes";[58] and
d)his westernised lifestyle and appearance, un-Islamic behaviour or ethnicity.[59]
[56] DR [61]-[64].
[57] DR [69].
[58] DR [72].
[59] DR [73]-[80].
The Authority concluded that, based on country information and the absence of a profile with the authorities, the applicant would not come to the adverse attention of the authorities upon return to Iran or that he would be imputed with an anti-government opinion. Accordingly, the applicant would not face a real chance of harm as a failed Ahwazi asylum seeker from a western country.[60]
[60] DR [82]-[83].
As to the complementary protection criterion, the Authority found that there was no real risk of significant harm to the applicant based on its earlier findings that he faced no real chance of serious harm.[61]
[61] DR [88]-[92].
The present proceedings
As noted above, these proceedings began with a show cause application filed on 24 July 2019. The applicant continues to rely upon that application. There are seven grounds in that application which are:
[Ground 1] The second respondent's decision was unreasonable.
[Ground 2]The second respondent took into account irrelevant considerations.
[Ground 3]The second respondent failed to take relevant considerations into account.
[Ground 4] There was insufficient evidence or no evidence to support various findings made by the second respondent.
[Ground 5] The second respondent in coming to its decision on 26 June 2019 in that it misconstrued and misapplied s36 of the Migration Act 1958.
[Ground 6] The second respondent's decision involved an error of law.
[Ground 7]The second respondent's in making the decision did not comply with the rules of natural justice and/or the applicant was denied procedural fairness.
The grounds are also addressed in a supporting affidavit filed with the application, which I received as a submission.
I have before me as evidence the court book filed on 9 August 2019. The applicant acknowledged receipt of the court book, but told me that he had left it at the detention centre where he is being held. I explained the contents of the court book to him. He stated that he was not familiar with the contents of the court book because he cannot read English. I explained that the documents in it should not come as a surprise to him as it comprised his visa application, the decisions made on that visa application and correspondence between him and the Minister’s Department and the Authority.
This matter came before me for a show cause hearing on 10 September 2019. At that time the applicant sought and was given an adjournment in circumstances where his father had just suffered a heart attack and the applicant was stressed and had trouble sleeping. When the matter resumed today, the applicant told me that his father had, unfortunately, died in the intervening week. He, nevertheless, asked to continue with the hearing as he did not want the matter to be further delayed.
I invited oral submissions from the applicant in relation to this matter. Those submissions addressed his claims for protection and the decision of the Authority on them. Unfortunately for the applicant, those submissions did not rise above a dispute over the Authority’s reasoning and conclusions. The applicant also drew attention to differences between the Western calendar and the Persian calendar which might explain some issues concerning dates. He also drew attention to the arrest of three Australians in Iran as evidence that assessments about conditions there are unreliable.
As I pointed out to the applicant, those are matters that might be appropriately raised with the Minister if the applicant seeks his intervention. As I put to the applicant, neither the Authority’s decision, nor the process that it followed points to any viable case of jurisdictional error. On my reading of the Authority decision, the conclusions reached by the Authority were open to it on the material before it and the process that it followed was in compliance with its statutory code of procedure.
The Minister’s submissions deal with the grounds of review advanced. I agree with those submissions.
Each of the applicant's grounds of review are unparticularised and formulaic in character. These grounds amount to little more than a bare assertion of unreasonableness and unfairness on the part of the Authority. In the absence of particulars, it is difficult to meaningfully engage with the applicant's grounds and it is unhelpful for this Court to attempt to surmise what the errors could be. These deficiencies alone are sufficient to dismiss the present application.[62] As his Honour Beach J has observed:
It is not incumbent on the Court to independently consider for itself whether such generic grounds might be capable of being particularised so as to identify a specific error made by the primary judge or a jurisdictional error made by the Tribunal.[63]
[62] ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59].
[63] See AIR15 v Minister for Immigration [2016] FCA 1425 at [19].
Grounds 1 (unreasonableness), 2 (irrelevant consideration) and 6 (error of law)
On a fair reading of the Authority's decision, the Authority gave genuine and proper consideration to the applicant's claims, evidence and material before it. There was a logical, evidentiary and intelligible basis for the findings that it reached,[64] as it considered country information relevant to the claims and the applicant's personal circumstances, and made findings which were open to it. The Authority's decision was not "plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, or “obviously disproportionate”.[65]
[64] Minister for Immigration v SZMDS (2010) 240 CLR 611 at 647-8.
[65] Minister for Immigration v Li (2013) 249 CLR 332; Minister for Immigration v Eden (2016) 240 FCR 158 at 171-2.
Ground 3 (relevant considerations)
In assessing whether a decision-maker has failed to genuinely consider a relevant matter, the applicant must demonstrate, on the balance of probabilities, that the Authority did not consider the material.[66] Therefore, in the absence of any particulars or indeed any supporting evidence, Ground 3 fails at the threshold level.
[66] Minister for Immigration v Khadgi (2010) 190 FCR 248, 273-4 [71].
Ground 4 (insufficient evidence)
Ground 4 rises no higher than mere disagreement with the merits of the Authority’s decision and is an attempt by the applicant to engage this Court in impermissible merits review.
Ground 5 (misconstrued and misapplied s.36 of the Migration Act)
By this ground, the applicant asserts error in the Authority’s construction and application of ss.36(2)(a) or (aa) of the Migration Act. The Authority plainly had regard to the correct statutory criteria for the “real chance” and “real risk” tests,[67] properly undertook its statutory task of “making findings as to primary facts, identifying the inferences which may properly be drawn from [them] and then applying those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he were to be returned”,[68] and concluded that there was no real chance or real risk[69] that the applicant would face serious harm on return to Iran.[70]
[67] DR [59]-[60] and [86]-[87].
[68] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 294.
[69] Noting that it is well settled that the “real risk” and “real chance” tests involve the same standard: MZYXS v Minister for Immigration [2013] FCA 614 at [31].
[70] DR [84] and [90].
Ground 7 (natural justice and procedural fairness)
There was no denial of procedural fairness or failure to comply with the rules of natural justice on the part of the Authority. Relevantly, the Authority’s duty is to “review” a fast track reviewable decision referred to it under s.473CA of the Migration Act.[71] In performing that duty, the "primary rule" under s.473DB of the Migration Act is that the Authority is expected to "evaluate for itself the material considered by the delegate" and, in doing so, is to proceed without accepting or requesting new information or interviewing the referred applicant.[72] The Authority is not required "to inform the [applicant] of specific reservations about the [applicant's] case and to provide the [applicant] with an opportunity to respond".[73] No jurisdictional error is apparent from the Authority's consideration of new information and the material forwarded to it by the Secretary under s.473CB of the Migration Act.
[71] See s.473CC(1) of the Migration Act.
[72] DGZ16 v Minister for Immigration (2018) 258 FCR 551, 568-570 at [69]-[78].
[73] Ibid, 569 at [72].
Consideration of whether the applicant would be perceived to be homosexual
As a final matter, the Authority did not fall into the same error as that of the first Authority decision maker in failing to consider whether the applicant would be perceived to be homosexual upon return to Iran. So much is clear from the Authority's decision at [66], [69], [72] and [73].
Conclusion
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error. The decision is, therefore, a privative clause decision, and I will dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 September 2019
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